Paul Vinogradoff

“ Through being parcelled up into small plots, land loses in value, and, as to cattle, it is impossible to divide one ox or one horse in specie without selling them. No wonder that we find practices and customs of united succession arising in direct contradiction with the ancient rule that all heirs of the same degree should be admitted to equal shares. Glanville mentions expressly that the socagers of his time held partly by undivided succession and partly by divided inheritance. ”

“ In Russia the so-called large family appears as a much less extensive application of the same idea. It extends rarely over more than three generations, but even as a cluster of members gathering around a grandfather or a great-uncle it presents an arrangement which hampers greatly private enterprise and staves off succession until the moment when the great household breaks up between the descendants of a great-grandfather.
In Germanic law we catch a glimpse of a state of things in which side relations were not admitted to succession at all. ”

“ The continuance of the relation of the deceased to his own things gives rise in most cases to provisions made for the dead out of his personal succession. The habit of putting arms, victuals, clothes and ornaments in the grave seems almost universal, and there can be no doubt that the idea underlying such usages consists in the wish to provide the deceased with all matters necessary to his existence after death. ”

“ The cases of succession will be a relapse of certain goods used by the member of a community to that community and a consequent rearrangement of rights of usage. The law of succession will again be constructed on a personal basis, but this basis will be supplied not by the single individual whose death has had to be recorded but by some community or union to which this individual belonged. (3) The aggregate of goods and claims constituting what is commonly called an inheritance may be considered as a unit having an existence and an object of its own. ”

“ One more feature of the ancient law of succession has to be noticed in conclusion, viz. the exclusion of women from inheritance in land. There can be no doubt that as regards movable goods women held property and transmitted it on a par with males right from the earliest time. According to Germanic conception personal ornaments and articles of household furniture are specially effected to their use and follow a distinct line of succession from woman to woman (Gerade) . Norse law puts women and men on the same footing as to all forms of property equated to “movable money” (Lösöre) ”

“ The unity of the inheritance and the social part played by it will constitute the ruling considerations in the arrangement of succession. The personal factor will be subordinated to the real one.
In practice pure forms corresponding to these main conceptions occur seldom, and the actual systems of succession mostly appear as combinations of these various views. We shall try to give briefly an account of the following arrangements: (1) the joint family in so far as it bears on succession; (2) voluntary associations among co-heirs; (3) division of inheritance ”

“ As a matter of fact, however, customary succession in Norwegian peasant families sets great price on holding the property of the household well together. It is keenly felt that a gaard (farm) ought not to be parcelled up into smaller holdings, and in the common case of several heirs succeeding to the farm, they generally make up among themselves who is to remain in charge of the ancestral household: the rest are compensated in money or helped to start on some other estate or perhaps in a cottage by the side of the principal house. ”

“ This is well in keeping with the view that customs of united succession arise in connexion with compensation provided for co-heirs waiving their claims in regard to settlement in the original household. The succession of the youngest appears also very characteristic in so far as it illustrates the break up into small tenancies, as the youngest in the family is certainly not a fit representative of hierarchy and authority and could not have been meant to rule anything but his own restricted household. ”

“ Any holder of such an estate who wants to sell it in its entirety or in portion has first to apply to his relatives and they may acquire the estate at the price proposed by a stranger less one-fifth. Even if no relative has taken advantage of this privilege an Odal estate sold to a stranger may be bought back into the family by compulsory redemption if the relatives subsequently find the means and have the wish to resort to such redemption. Odal right does not curtail the claims of the younger sons or of any heirs in a similar position. ”

“ In medieval England, France and Germany the same considerations of economic efficiency are felt as regards the keeping up of united holdings, and it may be said that the lower we get in the scale of property the stronger these considerations become. If it is possible, though not perhaps profitable, to divide the property of a large farm, it becomes almost impossible to break-up the smaller units—so-called yardlands and oxgangs. ”

“ War booty, proceeds of hunting, clothes and ornaments, implements fashioned by personal skill, are taken to belong to a man in a more personal way than the land on which he dwells or the cattle of a herd. ”

“ This accounts for the fact that notwithstanding the prevalence among the early English of the rule admitting all the sons or heirs in the same position to equal shares in the inheritance, the organic units of hides, yardlands, &c. are kept up in the course of centuries. In the management of so-called gavelkind succession in Kent partition was legally possible and came sometimes to be effected, but there was the customary reaction against it in the shape of keeping up the “yokes” and “sulungs.” ”

“ In order to keep these estates within the kindred they are to descend chiefly to men: women are admitted to property in them only in exceptional cases. Originally it is only the daughter of a man who has left no sons and the sister of one who has left no children and no brothers that are admitted to take Odal as if they were men. ”

“ They may, in certain eventualities, be bought out by the nearest male relative. A second peculiarity of Odal consists in the right of relations descending from one of the common ancestors to prevent strangers from acquiring Odal estate. ”

“ The first system is, of course, most easily carried out in countries where individualistic types of husbandry prevail. In Europe it is especially prevalent in the south with its intense cultivation of the arable and its habits of wine and olive growing. ”